Towards Holistic Transnational Protection: An Overview of International Public Law Approaches to Kidnapping

By Bailliet, Cecilia M. | Denver Journal of International Law and Policy, Fall 2010 | Go to article overview

Towards Holistic Transnational Protection: An Overview of International Public Law Approaches to Kidnapping


Bailliet, Cecilia M., Denver Journal of International Law and Policy


This article assesses dilemmas presented by the global phenomenon of kidnapping. It highlights the challenge presented by failed or semi-failed states, the current reliance on private actors to provide assistance in the face of non-state violence, protection gaps in the transnational legal framework, and the pursuit of asylum as a remedy. It describes the evolution of civil society reclamations for cosmopolitan justice in past situations of state directed enforced disappearance in the Americas to current appeals for communitarian justice in non-state actor kidnapping epidemics. The conclusion calls for innovation in legal institutions and norms addressing the protection needs of victims, as well as broader strategies to tackle the root causes of inequality, poverty, and corruption which have enabled kidnapping to escalate as an industry.

I. INTRODUCTION

[P]ublic security is the duty and exclusive obligation of the State, strengthens the rule of law, and is intended to safeguard the well-being and security of persons and protect the enjoyment of all their rights.

--Ministers Responsible for Public Security in the Americas, October 2008 (1)

The global criminal phenomenon of kidnapping is on the rise around the world, increasing at alarming rates in countries such as Algeria, Argentina, China, Mexico, Venezuela, Brazil, Colombia, Ecuador, El Salvador, Georgia, Guatemala, Honduras, Afghanistan, Haiti, India, Indonesia, Iraq, Israel & Palestine, Kenya, Lebanon, Nigeria, Pakistan, the Philippines, Russia, Somalia, Sudan, Saudi Arabia, and Yemen. (2) The states with the highest kidnapping rates correlate with the characterization of "failed/failing state": in which the rule of law and civic trust is deemed to be extremely weak, corruption is endemic, and governance is fragmented. (3) In addition, these states demonstrate high levels of poverty, unemployment, income inequality, stratified social classes, and lower development resulting in the deprivation of a guarantee of basic human security to citizens. (4) At the root of insecurity is a foundation of a failure to fulfill social and economic rights. Essentially, it may be argued that, in part, kidnapping epidemics are the fruit of social injustice. (5) From Weber's perspective, the state has lost its monopolization of organized violence, and civil society has lost enjoyment of a domestic zone of peace. (6) Indeed, the Preamble of Brazil's National Plans of Actions for the Promotion and Protection of Human Rights sets forth: "Kidnapping ... may not be considered normal or even tolerated in a state and in a society that claims to be modern and democratic." (7) The notion of the rule of law is rendered opaque, as judicial systems prove ineffective in penalizing those involved in kidnapping. While private security companies grapple with securing release of hostages, individuals and families are frustrated with the inability of states to prevent abductions. Some pursue cosmopolitan preventive/responsive measures by seeking asylum on the basis of high risk of kidnapping. (8) Others choose to stay in pursuit of communitarian aspirations to reclaim the nation from criminal gangs and assist the state by participating in restoration of the rule of law and non-violence. (9)

This article highlights civil society reclamations for justice in response to kidnapping, reviews accountability gaps within transnational law, and calls for the evolution of normative protection responses to the global kidnapping market in which private actors form part of both the cause and solution. Part II provides an overview of kidnapping as a transnational criminal activity, identifies the elements of the crime, reviews its connection to human rights violations by identifying cases and reports from UN and regional human rights bodies, and presents humanitarian and international criminal law dimensions. Part III gives an historic overview of kidnapping as state terrorism and the identification of the international crime of enforced disappearance. …

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